A Living Will is a health care advance directive that allows you to give written instructions that explain your wishes for future medical care, especially about end-of-life care. You cannot use a Living Will to name a health care agent; you must use a Health Care Proxy. Together, a Living Will and a Health Care Proxy lets you state your health care wishes and name a health care agent.
While New York does not have a statute governing Living Wills, the Court of Appeals, New York’s highest court, has stated that Living Wills are valid as long as they provide “clear and convincing” evidence of your wishes. If you are 18 years of age or older, you may express your wishes in writing about your health care by signing a Living Will. There is no standard Living Will form in New York.
Understand the Authority of Your Living Will. Since a Living Will is a written declaration of your health care wishes, you can leave specific instructions about medical treatments you may or may not want, when you are no longer able to decide for yourself. Your health care agent and health care providers will, if necessary, be guided by your Living Will so you must carefully determine the contents of your document.
Write Your Living Will. You can use a Living Will to write your wishes about care at the end-of-life. You may describe the medical situations in which you would accept or refuse medical treatment. You may specify the kind of treatment that you may or may not want. For example, you may state whether you wish to be kept alive with a feeding tube or intravenous feeding if you are terminally ill or comatose and there is no hope you will recover. A custom-tailored Living Will can help make clear your feelings about medical treatments. If you have questions, discuss them with your doctor, a patient representative at a hospital, or a lawyer.
In addition to medical directions, consider whether there are any spiritual or other personal directives you wish your health care agent and health care providers to follow. There are different forms available depending on your wishes. See page 3 for Resources.
Sign Your Living Will. It is best to have two witnesses watch you sign your Living Will, and sign a statement on the form that you appeared to sign willingly. Regardless of which Living Will form you choose to use, make sure you meet the minimum requirements for a Living Will listed below.
Minimum Requirements for a Valid Living Will:
1. Your name as the person creating the Living Will;
2. Date you create your Living Will;
3. Your statement(s) regarding your personal health care wishes;
4. Your signature; and
5. Two witnesses’ signatures and dates, and statements from the witnesses that you appeared to sign the document willingly.
Is a Living Will the Same as a Health Care Proxy?
Although both a Health Care Proxy and a Living Will are advance directives, they are not the same thing. A Living Will is a document that contains your health care wishes and is addressed to unnamed family, friends, hospitals and other health care facilities. You may use a Living Will to specify your wishes about life-prolonging procedures and other end-of-life care so that your specific instructions can be read by your caregivers when you are unable to communicate your wishes. A Health Care Proxy is a person who is named by you to make health care decisions on your behalf if you are no longer able to do so. You may give this person (your agent) authority to make decisions for you in all medical situations. Thus, even in medical situations not anticipated by you, your agent can make decisions and ensure you are treated according to your wishes, values and beliefs.
Can I have a Living Will and a Health Care Proxy?
Yes. Some people choose to sign both a Living Will and a Health Care Proxy so that they can leave specific medical instructions in writing and appoint a health care agent to carry them out. Your health care agent can rely on your instructions as guidance to make decisions that reflect your wishes. Remember, you can leave specific instructions about your preferences for care in your Living Will or in the space provided on the Health Care Proxy form itself. You may want to discuss the best course for you with your loved ones, a patient representative, your doctor, or a lawyer. You can cancel your Living Will at any time by destroying the document. You are not required to notify anyone by law before canceling your Living Will but it would be wise to inform those aware of its existence that you have canceled it.
Living Will Resources:
American Bar Association Commission on Aging
The Living In His Will Project (Christian)
Agudath Israel of America (Jewish)
National Right to Life Organization
Hemlock Society (Right to Die)